was dependent for its development on easy access to programming, and that the personal computer was dependent for its development on the widespread availability of computer software. Or, as it has been argued, the lack of legal protection mechanisms might stimulate the development of technological ones. Issues arise, therefore, as to how intellectual property laws might affect the development of different technologies and as to whether they might favor the development of one technology over another. Economic issues The information industry is one of the most dynamic sectors of the U.S. economy. It is responsible for approximately $500 billion of annual revenue and is growing at an annual rate of about 20 percent. Because of recent advances and developments in the area of information and communications technologies, it is an industry, moreover, that is in a state of tremendous change. Within the short period of the last eight to ten years, for example, the information industry has been transformed from one that produced a distinct, and therefore relatively scarce, product for a particular and narrow segment of the market to one that produces a rather undifferentiated, and therefore relatively plentiful, product for a mass market.7 While such a market may be an optimal situation for the information consumer, it is a highly competitive and risky one for the producers and distributors of information products and services. And in such a marketplace, where there are such large amounts of money at stake, the law of intellectual property may provide one class of producers and providers a key advantage over others, and thus significantly affect the structure of the overall market. How different approaches for dealing with intellectucal property might affect different kinds of information providers and distributors and the structure of the information market as a whole is, therefore, an important economic issue that needs to be addressed. Social political isssues Inherent in the American approach to intellectual property law is the conflict between the need to provide incentives for innovation and the need to ensure the freest possible flow of information. This conflict is enhanced in an age of information, when individuals need greater information and knowledge in order to effectively participate in and reap the benefits of society, but also when information and knowledge are treated less and less as a free good and more and more as a commodity to be bought and sold in the marketplace. In the past, access to intellectual properties was provided to those who could not afford to pay for them through nonprofit institutions such a libraries and schools on the basis of fair use provisions in the law. Giving the mounting pressures that we see today to extend ownership rights to many of the new information products and services, questions arise about whether or not fair use practices will be adequate in the future to assure equitable and socially optimal access to and distribution of information throughout society.8 International issues As broadcast satellites and high-power radio and television transmitters regularly extend their signals across national boundaries, information systems are becoming increasingly international and information products and services are coming to represent an every more important part of our export market. However, just as the new technologies have enhanced the ability of the American public to gain free access to the goods and services that these technologies provide, so too have they made it easier for other countries to do so. Problems have arisen for the United States most recently, for example, protecting the ownership rights of U.S. broadcasters whose programs are being received and rebroadcast without recompense in Canada and the Caribbean Basin. 10 As the international exchange of information 6 The information industry is defined here to include: the computer and office equipment industry, the computer software and services industry, the telecommunications industry, and the publishing, film, and broadcasting industries. 7 Statement of William Lilley, III, Vice President, Corporate Affairs, CBS, Inc., Proceedings, Congressional Copyright and Technology Symposium, Ft. Lauderdale, Florida, February 5, 1984. 8 In the recent Sony case the Supreme Court interpreted the fair use doctrine to apply to home taping, ruling that the use of home recorders was 'time shifting' and as such it falls within the 'fair use' exception to the legal right to control use of copyrighted material. 9 The Motion Picture Producers Association estimates, for example, that theater, television and home video rentals produce annual gross foreign revenues from of $3 billion. This represents a positive balance of trade for the United States of $1 billion. 10 The United States is a member of the Rome Convention for the Protection of Performers, Producers on Phonograms, and Broadcasting.organizations. This convention, however, makes no Continued and information products takes on even greater importance in the world economy, a growing number of international issues that focus on questions of intellectual property will most likely emerge. .11 Apart from how these issues might best be resolved, the question also arises as to whether or not existing domestic and international institutions will be able to effectively deal with them. Ethical issues The new information and communications technologies are changing the public's expectations about its rights to use them. For just as the public became readily accustomed to photocopying books, journals, and other printed materials, so too it is now learning to routinely copy films, disks, and tapes and to make unauthorized copies of electronic data. Software creators, producers and providers call this 'stealing'; some software users call it 'sharing.' Thus there is a growing gap between the theory of intellectual property law and its practice. This gap is likely to widen in the next several years, potentially challenging the legitimacy of the law and creating significant problems of enforcement. As a result, a number of ethical issues will most likely emerge in the future. Methodology As a means of identifying and analyzing the issues as they have been outlined above, the proposed study will (1) project plausible future trends in the development of communications and information technologies; (2) identify and trace the historical basis of intellectual property law; (3) identify the potential gaps in existing intellectual property law that may result from these technologieal developments; (4) identify and describe the changing role and value of information both in the economy and in society, at the international as well as the national level; (5) identify and describe the range of interests and values with respect to intellectual property; and (6) identify and outline alternative approaches to addressing problems of intellectual property as they relate to information and communications technologies. 1. Technology projections To identify potential problems with existing social and legal mechanisms for dealing with issues relating to intellectual property that arise from the development and use of the new information and communications technologies, a trend analysis will be made of plausible future technological developments in this area. This analysis will be based not only on projections of scientific advances in this area, but also on projections of the social and economic trends that might affect their development, deployment and use. Where appropriate, materials will be drawn from other OTA assessments, such as the technology case studies prepared for the assessment on "Information Technology Research and Development", International Competitiveness in Electronic," "Information Technology and Its Impact on Education" "International Cooperation and Competitiveness in Civilian Space Activities", and "Commercial Biotechnology: An International Analysis.” 2. Historical analysis An analysis that describes and traces the historical basis of intellectual property law will help to identify and provide criteria for evaluating the social choices that we are confronted with today in striking a balance between the goal of stimulating invention and creativity and of diffusing information and knowledge. This historical account will include a discussion of the development of software as a form of intellectual property, and describe how the accepted practices of its use have changed over time as its value has increased. 3. Review of gaps in intellectual property law and evaluation of the institutional structure for dealing with them Over the past few years, the court system has been asked to resolve an increasing number of disputes created by the technological gaps that have developed in the laws of intellectual property. As part of this assessment, an effort will be made to survey the extent of these gaps and to identify legal and institutional remedies that might be adopted to more effectively deal with them. Moreover, building upon the projections of technological trends, an effort will be made to identify where new provisions for cable and satellites, and only recognizes limited exclusive rights of broadcasters to control the use of their programs. 11 The British government has estimated, for example, that the international market for information goods and services will grow from 50 billion pounds in 1982 to 150 billion pounds by 1990. "The Age of Electronic Information," Department of Trade and Industry, United Kingdom, 1981. legal gaps might emerge or where institutional changes might be required in the future. 4. The changing role and value of information The development and widescale deployment of information and communications technologies have helped to give rise to what many social observers have come to characterize as an information society in which information will be major resource, and in which its creation, use, and communication will play a central role. As the role of information in society changes, so too does the balance between the ways in which society seeks to encourage innovation and intellectual creativity and the means by which it seeks to foster the dissemination of information and knowledge. In this study, an effort will be made to determine how the changing role of information brought about by the new technologies might affect that balance. Moreover, since information in its present role is relatively new and distinct from other critical social and economic resources, 12 an effort will be made to determine the extent to which it can in fact be treated as a traditional form of property. 5. The range of interests and values with respect to intellectual property Because of the wide diversity of information products and services, there are also a great many different and often conflicting values and interests at stake in the outcome of the present debate about intellectual property. The positions of software producers, for example, are often at odds with those of hardware producers; the interests of creators different from those of providers and distributors; the wishes of small companies diverse from those of large companies; and the needs of the public in conflict with those of the private sector. In this assessment, therefore, an attempt will be made to identify these values and interests and to determine how different approaches to dealing with intellectual property as it is created, embodied, transmitted and used in information and communications technologies might affect each of them. 6. Alternative approaches to addressing intellectual property issues Intellectual property law is one approach to fostering the development of science and the useful arts while encouraging the dissemination of information and knowledge to the public. Recently, a number of questions have been raised about whether or not new legal remedies are required or are even appropriate to stimulate the development and use of the new information and communications technologies. A number of alternative approaches have been suggested, ranging from those that call for increased public education to those that call for technological solutions. In this assessment, an effort will be made to identify the range of alternative strategies and to evaluate them in terms of how effective they might be in accomplishing the dual aims inherent in intellectual property law and in terms of how they might affect the various interests at stake. Advisory panel The Advisory Panel for this study will be selected to represent a broad range of relevant disciplines, experience, and perspectives. It will consist of approximately 15 members who will represent or who will have an expertise in the following areas: intellectual property law, the economics of information, the politics of information and intellectual property, the software industry, the hardware industry, the publishing industry, the interests of authors, the "fair use" of information (libraries, schools, universities, etc.), information consumers groups, the data base industries, the cable industry, the film/television/recording industry, and ethics and philosophy. The Advisory Panel will be supplemented by a number of working groups, at least one of which will be devoted to the legal aspects of intellectual property, one of which will focus on the economics of information, and one of which will examine the role of information as a public good. The study would be initiated in April 1984, a final report is scheduled to be presented to the Technology Assessment Board in fall, 1985, and a printed version to the requestors by December 1985. 12 As Harlan Clevelnd has noted, information is distinct from other resources insofar as it is human, expandable, compressible, substitutable, transportable, diffusive, and shareable. Many of these characteristics make it difficult to "protect." For a discussion of these points, see for example, Harlan Cleveland, "King Canute and the Information Resources," Forum, #12. January |